The Eighteenth-Century Rollback of Intellectual Property

One Edinburgh bookseller, Alexander Donaldson, who had made a good living from exporting Scottish editions to England, decided to take on the London trade in the most provocative manner possible: in 1763 he established a bookshop in London and openly sold his Scottish editions, boasting of how he undercut the prices of his rivals between 30 and 50 per cent. The provocation could not go unheeded. With the help of other publishers, Andrew Millar, one of London's most powerful booksellers, took Donaldson to court. The case was one of several Millar brought.... Millar... owned a number of important copyrights, including those to Henry Fielding's Tom Jones and Amelia; he was a major figure in the consortium of booksellers that had published Johnson's Dictionary... the chief undertaker behind David Hume's History of England....

Millar's prosecution... litigation... ended only after his death. He thus avoided the disappointment of seeing a decision that ended perpetual copyright.... In the aftermath of Millar v. Donaldson.... Publishers, wholesalers, and retail booksellers emerged as discrete links in a chain forged by a far more competitive, unprotected trade.

The debate about perpetual copyright.... During the pamphlet war that had accompanied the litigation, important arguments were advanced against the booksellers' assertion that perpetual copyright was a form of inalienable property, arguments that the free circulation of ideas was a matter that deeply affected the public weal. As Donaldson's lawyers argued, 'Public Utility requires that the Productions of the Mind should be diffused as wide as possible, and therefore Common Law could not, upon any principles consistent with itself, abridge the Right of multiplying Copies.' From this point of view, once a text was published it became a sort of property held in common by its readers. As one of the judges put it... 'the very matter and content of... books are by the author's publication of them irrevocably given to the public; they become common; all the sentiments contained therein, rendered universally common; and when the sentiments are made common by the author's own act, every use of those sentiments must be equally common.'

The argument against the property rights of booksellers held that general access to freely circulated ideas encouraged progress, a plea appropriately voiced most eloquently in Scotland, where the free market arguments of political economists, notably Adam Smith, had gained great currency.... Open rivalry made for better literature. It was also good for readers.... Scottish political economists and their followers believed that property acquired value... through its circulation and exchange in a system of commerce. The application of this view to literature not only bolstered the case against monopolizing booksellers, enriching themselves at the 'expense of th ewhole nation,' but focused public attention on a literary system, rather than on individual works. As the author of An Inquiry into the Nature and Origins of Literary Property put it, "The Learning of the present Age may be considered as a vast Superstructure, to the rearing of which the Geniuses of past Times have contributed their Proportion of Wit and Industry; to what Purpose would they have contributed if each of them could insist that none should build on their Foundations?'...

The end of perpetual copyright helped to clarify the idea of a national tradition... created a commercial environment in which it could be realized. Any enterprising publisher could now compile his own anthologies.... The later books were also cheaper, as rival publishers put out competing versions of the national literary heritage....

Posted by DeLong at January 3, 2005 06:08 PM

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Comments

Larry Lessig makes a similar point about the history of copyright as property in chap 6 of Free Culture, online at http://www.free-culture.cc/ . There are powerful interests that are seeking now to turn copyrights into perpetual rents under the guise of "anti-piracy."

Henry Home, Lord Kames -- Scottish jurist/historian/philosopher and mentor to Adam Smith -- made a significant contribution to this debate in a decision of 1773, where he argued for limited copyright on the grounds of "public interest."

Trevor Ross's "Copyright and the Invention of Tradition" is a good account of the eighteenth-century debates.

Public Utility requires that the Productions of the Mind should be diffused as wide as possible, and therefore Common Law could not, upon any principles consistent with itself, abridge the Right of multiplying Copies.

What an argument! No wonder that it carried the day. I define Public Utility as requiring the diffusion of Productions of the Mind (but not for example food, shelter or medicine) and therefore it requires said diffusion that the law cannot abridge. Public interest - for the *right* public.